Seeking Execution Drug, States Cut Legal Corners
At the same time, it has given death-penalty opponents fresh arguments for suing to block executions.
Until recently, states that use the drug, the barbiturate sodium thiopental, got it from a domestic supplier, Hospira Inc. But that company stopped making the drug in 2009 because of manufacturing problems and announced this year that it would stop selling the drug altogether. International pressure on suppliers by groups opposed to the death penalty has further restricted access to the drug. States had to find a new source, but importation of sodium thiopental is highly restricted under federal law.
Recently released documents emerging from lawsuits in many states reveal the intense communication among prison systems to help one another obtain sodium thiopental, and what amounts to a legally questionable swap club among prisons to ensure that each has the drug when it is needed for an execution.
In depositions from
“I went wherever they had them,” Ms. Kelley said. “As best as I’m aware, the agreement my director had with other directors, any time there was an exchange, was that there would be a payback when needed.”
Bradford A. Berenson, a Washington lawyer who on behalf of death row inmates has urged the Food and Drug Administration and the attorney general, Eric H. Holder Jr., to block the importation of unapproved execution drugs into the United States, said the states had been “pretty heedless of the legal lines” regarding the purchase and importation of powerful drugs like sodium thiopental. It was as if “because this was death-penalty related, it was somehow exempt from all the normal rules,” Mr. Berenson said. “As a legal matter that was not true.”
States sometimes took remarkable measures to obtain the drugs, the documents suggest.
So officials explored a new tactic, the documents show
The owner of Dream Pharma, a wholesaler run out of the back room of a driving academy’s offices in
This approach may well have broken federal drug laws, said John T. Bentivoglio, a former associate deputy attorney general, in a February letter to Mr. Holder on behalf of a
“I think it’s quite reasonable to expect a state criminal justice agency like a department of corrections to abide by federal law,” Mr. Bentivoglio said in an interview.
Other documents show close cooperation among the states. A
Mr. Kernan sent a thank-you note to Charles Flanagan, the deputy director of
When Arizona ordered its own shipment in September, documents show, the state worked closely with Customs and Food and Drug Administration officials to prevent the kind of delays that plagued Georgia, and made sure that the port of entry was Phoenix, where its own broker could help. The shipments were labeled as being for veterinary use, which lawyers for the prisoners argue was intended to get the drugs lighter regulatory scrutiny.
“Based upon our review of documents released by federal agencies, it appears that there was a culture of premeditated deception,” said Dale Baich of the federal public defender’s office in
Kent E. Cattani, chief counsel for capital litigation in the
Representatives of the Food and Drug Administration, the Drug Enforcement Administration and the Department of Justice said agencies’ policies did not allow comment on pending litigation.
Until the drug shortage, the routine for lethal injections had been a fairly settled process. States allowed little change for fear of deviating too far from practices that have been declared constitutional. The three-drug protocol widely used for a quarter-century involves sodium thiopental or a similar sedative, pentobarbital, to render the prisoner unconscious. A second drug, pancuronium bromide, brings on paralysis and a third, potassium chloride, stops the heart.
Supporters of the death penalty criticize the recent challenges as yet another delaying tactic in a long history of try-anything challenges. Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation in
Douglas A. Berman of Ohio State University, an expert on sentencing and punishment, says the recent legal challenges concerning death penalty drugs are more than a mere inconvenience to the process. “This mess is a speed bump,” he said, “but one that does raise serious issues about the death penalty.” The bigger issue beyond what he called the “Keystone Kops” fumbling of state officials, Professor Berman said, is what the disruption to the process says about the temperamental nature of what death-penalty abolitionists call the “machinery of death.”
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs